The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Saturday, August 16, 2003

Electric heroes: a memoir

We haven't yet heard a definitive explanation for the power blackout that swept the Northeast and parts of the Upper Midwest this week. Whenever someone pinpoints the immediate, precipitating cause, there will of course still be serious questions left to answer — along the lines of, "But how could we have permitted a situation where that glitch resulted in all this?" Eager pundits are already pointing to deregulation — in particular, (a) the separation of ownership between generating facilities and transmission lines, and (b) general market uncertainty that has deterred long-term capital investments into the nation's power generating and transmission infrastructure — as the explanation for our vulnerability to the rippling, cascading effects of whatever the original glitch was. Personally, I'm not in a position to offer educated guesses about those topics.

These blackouts have, however, reminded me of past personal experience, on the basis of which I can make a fairly confident guess about who was not to blame for this — a low-profile set of workers whom we take entirely for granted, despite the fact that they put their lives at risk for you and for me on a daily basis. Indeed, they face hazards that can be every bit as deadly and unforgiving as those which our soldiers and police and firefighters confront. And they get no recognition for it, no credit other than a blue-collar wage and an intense, very quiet shared pride.

****

I had the privilege and the honor in my first few years of law practice to work at a firm that regularly represented the local electric utility here in Houston, then known as Houston Lighting & Power Co. — "HL&P" we called it, or simply "the Light Company." Law firms value such clients highly because they always have need of good lawyers; their representation entails not only a large volume of work, but a broad variety, much of it very challenging and interesting; and they pay their bills promptly.

On my first day as a practicing lawyer in fact, I was lucky enough to get to be the "third-chair lawyer" in the team defending the Light Company on a serious injury case, metaphorically "carrying the briefcases" of two much more senior lawyers at the firm who were doing the heavy lifting and skill work. We lost — we fought a good fight, but we got whipped, and in hindsight the jury did almost exactly the right thing with its verdict in that particular case — and yet I learned more about my profession from that single two-week trial than I'd learned in all my courses in my last two years of law school put together, I think.

As my skills and experience grew, so did the responsibility with which I was entrusted, so that I found myself a few years later acting as the first-chair lawyer — albeit still with discreet supervision and backup from the firm's partners — in preparing for trial another very serious case against HL&P. The case was brought by the widow of one of the Light Company's own long-time employees, a journeyman lineman in the Transmission Department who'd died in a horrible on-the-job incident.

That's probably not an immediately meaningful job title to most of you, is it? "Lineman"? Isn't that a football player? Maybe a judge in a tennis match?

****

This man had been one of an elite class of highly skilled tradesmen whose jobs exist in an eerie intersection between electrical engineering and circus acrobatics. "High linemen," they're sometimes called, for their job is to construct, maintain, and repair the incredibly tall steel towers that carry electric power from the distant power plants to the cities. They put the towers up, they take them down. They fasten the insulators to the tower arms that hold up the long, thick loops of naked steel cable — "conductors," they call them — which carry "the juice," the current, the electricity.

When the tropical storms and hurricanes that regularly lash the Texas Gulf Coast knock down transmission towers or lines, these men put them back up — usually working around-the-clock. Their skills are so unique and rare, in fact, that they're sometimes "loaned out" to other power companies around the country — sent to the coasts of Alabama or Florida to deal with the aftermaths of hurricanes there, for instance, when the whims of weather and fate have steered one of those beasts north or east instead of west through the Gulf.

I knew almost nothing about these men or their work when I was assigned this particular case, but for reasons that were very much in dispute, this particular lineman either fell — or under one interpretation of the evidence, perhaps intentionally jumped — some 120 feet to his death from the cross-arm of a transmission tower on which his crew was performing routine maintenance. Inexplicably, he was not "safetied off" — attached by a line from his body harness to the tower structure — in clear violation of the cardinal rule that he'd not only lived by every day of his career, but that he also helped train to apprentice linemen in the Light Company's safety training program. Regardless of whether he, the Light Company, or anyone else was at fault, his widow automatically qualified for, and was receiving, the comparatively meager death benefits provided by the statutory worker's compensation scheme. But she had also sued the Light Company, claiming that its work rules and practices were grossly negligent — in effect, that her husband had been killed because HL&P (through its safety and training staffs and its crew foremen) didn't give a damn about the safety of its workers.

So to defend this case properly, I had to learn all about how these men — they were only men, for at the time of this accident there were no women among these crews — did their jobs every day. I had to learn their safety rules, their procedures, their habits, their routines — sometimes their superstitions. I had to learn what made them tick. Over a two-year period during the pretrial "discovery" phase of the case, I spent many hours with these men — educating myself, gathering documents and other information, and eventually presenting crewmember after crewmember for hostile cross-examination by the widow's counsel in pretrial oral depositions.

It made for odd friendships, for on the surface I had almost nothing in common with these men. I was fresh from a post-graduate education; they generally had high-school educations at the most. I aspired to management (partnership someday); they were loyal union men to the core. I wore wingtips and conservative wool business suits, white cotton shirts, and burgundy silk neckties to work; they wore steel-toed boots and denim and leather. After driving over paved streets to work, I parked in an underground garage; after driving over mud and brush to work, they parked in clear-cut rights-of-way amidst tall pine forests. My lunches among my coworkers were generally at downtown Houston restaurants with white linen tablecloths; they lunched among their coworkers while sitting on pickup tailgates, eating sandwiches out of steel lunchboxes and drinking ice-water from massive orange plastic jugs.

I worked high, high above ground level, in a gleaming, air-conditioned office tower made of steel, marble, and glass. I strode across upon floors that alternated between carpet and polished hardwood, and when I reached out, I touched walls paneled in exotic woods and adorned with tasteful modern art. They also worked high, high above ground level, but on gleaming skeletal steel towers with neither glass nor marble. They clambered up narrow steel ladders and then inched across four-inch-wide "angle-iron" girders made slippery with rain or morning dew, and when they reached out, they touched either the open sky or heavy steel cables whose purpose was to carry enough electricity to power the nation's fourth largest city.

Because they were so well trained, they were able to work safely, routinely, under conditions that would terrify you or me. Although they were keenly aware at every moment that a casual mistake could cause a death by falling or a death by electrocution in less time than you can scroll down this page, they "worked smart" by methodically adhering to rules designed to minimize and control their risks. Their employer didn't ask them to violate those rules in order to get your power turned back on a half hour sooner, and in fact forbade them from doing that; and their safety rules quite correctly put a higher premium on these workers' lives than on your or my convenience.

But they knew — you saw in their eyes when you talked to them — they knew how much our world depends upon, and almost always takes wholly for granted, the magic show that their work keeps running with extremely rare interruptions, 24/7/365. Collectively, they ached with every minute the power was off in your house or mine.

They had a strong sense of duty, and they had a natural dignity that was boundless. They were modest men, but they had quiet pride by the mile. Amongst each other, they were very, very funny. They cussed a lot, and after work they'd go out together for a beer, or to hunt or play poker or catch an Astros game. And they stuck up for one another. You'd think twice about crossing any one of them.

I took the case seriously from the beginning because I was ambitious and eager and energetic and ethical, and this was among my firm's biggest and most important clients. They took the case seriously from the beginning because one of their own had died in their midst, for reasons they couldn't quite explain or grasp, and they were being accused of having caused his death by their indifference.

What I never expected, however, was how much I would come to admire and, eventually, to identify with these men, and as a result just how personally I would come to take the charges being made against them.

****

By the time of the trial, I was a tiger on their behalf. I was filled with a cold, polite fury that these men — who all loved one another as brothers, and who had loved their dead coworker just as much — were being accused of causing his death, and not by being just sloppy and careless, but reckless and indifferent. Never have I been more highly motivated than I was in this case and in this jury trial.

I wanted them to be vindicated! I wanted the jurors to share the silent tears my clients had already shed for this man, but then I wanted them to shake my clients' hands after the trial was over, and maybe hug them and tell them, "We know it wasn't your fault. We know you loved him too." Because that was the truth; they did.

By the time we'd finished all the evidence and the closing arguments, the objectivity I had left about this case would probably have left ample room to spare if stuffed into a matchbox.

And it was almost certainly in anticipation of that likelihood — and, frankly, to guard against some possible catastrophe in a potentially multi-million dollar case for one of our best clients — that my firm had prudently sent along a young partner, a lawyer of about ten more years' experience than I had, to look over my shoulder and "second-chair" me. My counterpart on the widow's legal team had an experienced partner from her own firm there as well; if anything, her objectivity by that point was even less than mine, because the trial had gone well from my point of view and she was very frustrated, but every bit as devoted to her client. And while my senior second chair shared my optimism, hers doubtless saw a looming probability that they were about to be, as trial lawyers indelicately phrase it, "poured out like piss out of a boot" — to lose the case and to get nothing, not a dime, for their client (or themselves, since they had the case on a contingent fee).

So while the jury was deliberating, those two senior lawyers disappeared into the snack bar, then made some phone calls. They came back in a few minutes, all smiles and handshakes, to announce that they'd reached an agreement to settle the case. (The terms were, and are, confidential, but I can say that the number crunchers back in the financial and legal departments of the Light Company were extremely well pleased.)

The judge called the jury back from the jury room, told them that the parties had reached an agreed settlement, thanked them for their service, and sent them confusedly home. In the hallway outside, several of them confirmed to me that in working their way through the list of questions they were to answer for their verdict, they'd already reached agreement on preliminary answers that would have resulted in a victory for my side.

So for about two or three days, I was absolutely furious with my more senior colleague. I felt that I had been robbed of a jury verdict, a courtroom triumph that I damn well deserved! And I felt like my clients — note here my identification with the individual linemen and their crew foreman, not their huge corporate employer — had been deprived of the vindication I sought on their behalf.

But after letting me cool down, my colleague took me to lunch to debrief and talk about the lessons I could learn from the case. "Bill," he said, "I know you're disappointed that I settled the case out from under you. But I want you to stop a minute and think like a human being instead of like an advocate." He paused to let this sink in.

"In the greater scheme of life, are you really furious that Mrs. ___ is getting the fairly modest amount of money that will be left to her after her lawyers' fees and expenses are extracted? She's not getting a huge windfall. Our client can afford it. It all goes into the rate-base, and ultimately it will be paid in tiny, tiny increments by all the families for whom Mr. ___ helped keep the lights on during his twelve years with the company. Can you not see the justice in that result, even if it wasn't the harsh and total victory you were gunning for?"

I was ashamed. He was right, of course. After all the storm and fury that the adversary system postulates will result in justice had cleared, justice — something genuinely fair — had been accomplished.

When this had soaked in, I arranged to meet again, one last time, with the crew. Some of them had been disappointed when they'd heard of the settlement. They wanted to know if the Company thought they'd screwed up, or if the Company had sold them out. I reassured them, and I gave them the same explanation my colleague had given to me. It was actually probably easier for them to grasp than it had been for me — they felt more natural sympathy for the widow of their dead coworker (whom I had seen only through the distorted prism of the adversary system).

****

So when I hear about blackouts in Cleveland or New York, or on those blessedly rare occasions when they happen here, I think about that case, and that trial, and those men. I think about how lucky I was to have had the chance to be their advocate, their lawyer. I think about how much they taught me.

And I think about how lucky we all are that our electric heroes are willing to climb into the sky every day, to build and maintain and fix the towers and the cables that tame the man-made lightning which makes our civilization work — to keep the magic turned on for you and for me.

Update (Tue Aug 19): Lynne Kiesling's site, The Knowledge Problem, contains an impressive set of facts, opinions, and links about last week's blackout and the electrical energy situation in general, and she also has an interesting article that's just come out in Reason entitled "Rethink the Natural Monopoly Justification of Electricity Regulation."

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